A proposed code of practice which implements legislative measures aimed at reducing online copyright infringement has today been published by Ofcom, as part of its new duties under the Digital Economy Act 2010 (the Act).

The Act requires that the code of practice is implemented no later than eight months from Royal Assent, including approval from the European Commission. Subject to consultation and approval, Ofcom expects the code to come into force in early 2011.

The code of practice

The draft code sets out how and when Internet Service Providers (ISPs) covered by the code will send notifications to their subscribers to inform them of allegations that their accounts have been used for copyright infringement.

In passing the Act, Parliament’s intention was that Ofcom should apply the obligations in a proportionate way, with the code initially covering only the larger fixed-line ISPs, but with the clear message that, should levels of copyright infringement on other networks, including mobile, increase then those ISPs will similarly be required to comply with the obligations. Ofcom proposes, therefore, that fixed-line ISPs with over 400,000 subscribers will be covered initially. This would mean that the seven largest ISPs – BT, Talk Talk, Virgin Media, Sky, Orange, O2 and Post Office – will be covered by the code from the outset. Ofcom proposes to regularly review evidence of online copyright infringement across all service providers and to extend the scope of the code if appropriate.

The code also sets out the threshold for including subscribers on a copyright infringers list which must be compiled by ISPs. ISPs will have to record the number of notifications sent to their subscribers and maintain an anonymised list of alleged serial copyright infringers. Copyright holders can then request information on this list and pursue a court order to identify serial infringers and take legal action against them. Ofcom is proposing a three stage notification process for ISPs to inform subscribers of copyright infringements and proposes that subscribers which have received three notifications within a year may be included in a list requested by a copyright owner.

Appeals process

Ofcom’s approach is guided by the need to protect the interests of consumers and citizens. Ofcom will establish an independent, robust subscriber appeals mechanism for consumers who believe they have received incorrect notifications, arrangements for enforcement and dealing with industry disputes, as well as sharing the costs arising from the code.

Additional measures to reduce copyright infringement

The code of practice forms part of a wider set of industry activity to tackle online copyright infringement including consumer education, the promotion of lawful alternative services and targeted legal action against serious infringers. Ofcom intends to monitor how these develop and will report regularly to Government on both the effectiveness of the code and on the additional measures.

1.Under section 124D of the Communications Act 2003 (as inserted by the Digital Economy Act 2010), Ofcom has a duty to make a code for the purpose of regulating the initial obligations of ISPs to send notifications and provide copyright infringement lists to copyright owners on request.

2.The Act provides that the Secretary of State may by order impose technical measures which include bandwidth throttling and temporary account suspension 12 months after the Code comes into force. Any such order must be approved by both Houses of Parliament.

3.Ofcom is the independent regulator and competition authority for the UK communications industries, with responsibilities across television, radio, telecommunications and wireless communications services.

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